Dickey v. State

• Decision Date: 14 June 1977
• Docket Number: No. 54568,54568
• Citation: 552 S.W.2d 467
• Parties: Cecil Ray DICKEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 467

552 S.W.2d 467

Cecil Ray DICKEY, Appellant, v. The STATE of Texas, Appellee.

No. 54568.

Court of Criminal Appeals of Texas.

June 14, 1977.

Rehearing Denied July 6, 1977.

Rudolph E. Gaulke, Houston, for appellant.

Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Hogan S. Stripling, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

This is an appeal from an order revoking probation. Appellant was originally convicted of the offense of robbery by assault under the provisions of the former Penal Code, Article 1408, Vernon's Ann.P.C. Punishment was assessed at eight (8) years in the Texas Department of Corrections. Imposition of sentence was suspended and on February 22, 1974 appellant was placed on probation for a period of eight (8) years.

Among the terms and conditions of probation was that appellant should commit no offense against the laws of this State or any other state or of the United States. On December 30, 1975 the State filed an amended motion to revoke probation alleging that appellant committed the offense of public intoxication. After a hearing on the State's amended motion the trial court found that appellant had violated the terms and conditions of his probation by committing the offense of public intoxication on or about November 28, 1975. Appellant's probation was revoked and he was sentenced to eight (8) years in the Texas Department of Corrections.

In his first ground of error appellant contends that the trial court abused its discretion in revoking probation because the evidence was insufficient to show that appellant committed the offense of public intoxication.

The record reflects that appellant was found asleep with a companion in a car parked in front of a lounge in Houston at 2:30 a. m. The arresting officer testified that he removed appellant from the car and "found him to be intoxicated" and "found essence of alcohol on his body." He further stated that, based on his experience as a police officer and having arrested many persons who were found to be intoxicated, it was his opinion that appellant was "very intoxicated" and that his companion was also intoxicated. The officer also stated that appellant's speech was slurred and he was "wobbling" when he walked.

V.T.C.A. Penal Code, Section 42.08, provides:

"(a) An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another."

Appellant contends that the evidence is insufficient to show that he was a danger to himself or anyone else.

In Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975) the evidence showed that the accused was in a state of intoxication as he walked down the middle of a public street after dark in the city of Plainview, although the street was vacant. We held this evidence sufficient to show a violation of Section 42.08, supra.

In Bentley v. State, 535 S.W.2d 651 (Tex.Cr.App.1976) the record showed that the accused appeared in a service station in an intoxicated condition and was attempting to purchase tire chains for his car. We held the evidence sufficient to show a violation of Section 42.08, supra.

An essential element of Section 42.08, supra, is that the individual must be intoxicated to the extent that he may endanger himself or another. In Balli it was the potential danger involved in walking down the middle of the street in an intoxicated...